Francis v Scott Corporation Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Francis v Scott Corporation Limited [2022] NSWPIC 624
APPLICANT:	Mark Francis
RESPONDENT:	Scott Corporation Limited
Member:	Philip Young
DATE OF DECISION:	9 November 2022
CATCHWORDS:	WORKERS COMPENSATION - Accepted left shoulder injury but alleged consequential conditions right shoulder (overuse) and cervical spine disputed; consideration of the medical evidence; respondent’s Independent Medical Examiner employed incorrect consequential condition test re causation and recorded inaccurate history; insufficient history regarding complaints of neck symptoms and no neck diagnostic pathology; Held – applicant’s right shoulder condition results from left shoulder injury but award for respondent in respect of alleged cervical spine condition.
determinations made:	1. The applicant has suffered a consequential condition namely a right shoulder condition which was caused or materially contributed to by his left shoulder injury of 4 December 2015 in that the applicant through increased use of his right arm and shoulder both at work and generally has given rise to pathology in his right shoulder. 2. The surgery to the applicant’s right shoulder recommended by Dr Jansen is reasonably necessary medical treatment resulting from injury to the applicant’s left shoulder on 4 December 2015. 3. The respondent is directed to pay the costs of and incidental to the proposed right shoulder surgery. 4. Award in favour of the respondent in respect of the alleged consequential condition to the applicant’s cervical spine.

STATEMENT OF REASONS

BACKGROUND

Mr Mark Francis (the applicant) is a 60-year-old man who was employed by Scott Corporation Limited (the respondent) as a truck driver. He alleges that in the course of his employment on 4 December 2015 whilst he was climbing down a ladder on a tanker truck, his feet slipped leaving him hanging by his left shoulder as a result of which he injured that shoulder. He also alleges a consequential condition in respect of his right shoulder and neck through protecting his left shoulder after 4 December 2015 together with the nature and conditions of his employment after that same date.
The claim is for a Declaration pursuant to s 60 (5) of the Workers Compensation Act 1987 Act (the 1987 Act) that the respondent is liable to pay the costs of right shoulder arthroscopic cuff repair and associated treatment as recommended by Dr Jansen.

ISSUES

The parties are in agreement that the proposed surgery is reasonably necessary but the respondent disputes causation and in particular whether the applicant’s right shoulder condition results from the applicant’s work.
During submissions the applicant’s counsel confirmed that the matter was not being pursued as a nature and conditions claim, only a consequential condition claim. That narrowed the issue somewhat to the simple question as to whether the injury to the applicant’s left shoulder and the consequences of that injury caused and/or material contributed to the applicant’s right shoulder condition.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

This matter came for conciliation and arbitration hearing by MS Teams on 18 October 2022. Mr Allen Parker of counsel instructed by Mr Bussoletti, solicitor appeared for the applicant and Mr Necovski of counsel instructed by Ms Ralph, solicitor, appeared for the respondent. The applicant was present.
The parties participated in an extensive conciliation process but regrettably despite the exercise of my best endeavours to attempt resolution, the matter was not capable of settlement. In those circumstances, the jurisdiction of this Commission to proceed to determine the matter was enlivened.

DOCUMENTS BEFORE THE COMMISSION

The following documents were in evidence before the Commission:
(a)   Application to Resolve a Dispute lodged 27 July 2022 and attachments (Application);
(b)   Reply lodged 16 August 2022 and attachments (Reply), and
(c)   Application to Admit Late Documents lodged by the respondent with attachments filed 17 October 2022.

ORAL EVIDENCE

No oral evidence was given.

DISCUSSION AND REASON

After explaining the mechanism of his injury on 4 December 2015[1] the applicant confirmed that in December 2015 he consulted Dr Haber[2] and Dr Haber on 14 January 2016 asked him to complete a “shoulder questionnaire”.[3] That questionnaire is in evidence.[4] It includes the following questions in respect of the applicant’s left shoulder:
“13. How much do you use your uninvolved arm to compensate for your injured shoulder?”
The applicant marked a response on a sliding scale near the end designated ‘constant’.”
[1] Application at pages 2-3.
[2] Application at page 3 at [16].
[3] Application at page 4 at [19].
[4] Application at page 149.
Dr Powell saw the applicant at the request of the respondent on 11 November 2020 and his first report is dated 31 December 2020.[5] He took a history of the left shoulder surgery performed by Dr Haber on 29 January 2016[6] and further surgery on 11 November 2016 and 30 October 2017.[7] He also obtained a history of the right shoulder symptoms.[8]
[5] Reply at page 15.
[6] Reply at page 16.
[7] Reply at page 17.
[8] Reply at page 17.
Dr Powell’s examination indicated that the neck pain and the mild stiffness “was referred from the chronic left shoulder condition” and that “examination of the right shoulder today revealed only very minor restricted range of motion, possibly reflecting some underlying rotator cuff tendinopathy”.[9] In referring to Dr Bodel’s opinion that the neck pain and right shoulder pain developed because of the applicant favouring those sides when protecting the left shoulder his conclusion is:
“… I do not believe that there is sufficient evidence to conclude that Mr Francis’ employment represented the main contributing factor in either the development or aggravation of any conditions involving the cervical spine or right shoulder”.[10]
[9] Reply at page 19.
[10] Reply at page 20.
It will be observed that Dr Powell did not employ the correct legal test for consideration of consequential conditions.
In the same report Dr Powel concludes “there is no evidence that Mr Francis has suffered a consequential injury”[11] but his comments in relation to additional load on the right shoulder and cervical spine being well within physiological capabilities are prefixed by “since the left shoulder injury, Mr Francis has been unable to return to his pre-injury duties”. His opinion relies upon that history.[12]
[11] Reply at page 22.
[12] Reply at page 22.
The applicant’s actual history concerning the duties he performed on return to work are set out in the applicant’s statement. Following his first operation and until his second operation the applicant eventually got back to work three or three and a half months after the first operation on light duties.[13] After his second operation he underwent further rehabilitation including physiotherapy[14] but continued to use his right arm to compensate for the limited use of his left arm.[15]
[13] Application at page 3 at [24].
[14] Application at page 4 at [32].
[15] Application at page 4 at [33].
After his second operation the applicant returned to work in late January 2017 doing office duties but was “trialled back into the truck for short periods but was unable to persist”.[16] The applicant says that the symptoms in his left shoulder continued to worsen throughout 2013 and he therefore agreed to a third left shoulder operation.[17] After rehabilitation following the third surgery the applicant return to work in March 2018 “working on the truck” he says:
“Initially it was part time about four hours per day, one or two days per week for about six weeks and then eventually this was increased until I started back on full hours. The work in the truck involves driving the BW automatic truck from Port Kembla to Bomaderry. We load the truck with ethanol. This involves me hooking up the loading arms to the truck. The loading arms are on a stand and you clip them off and plug them and click them onto the truck inlets. I have to manoeuver them into place and because of my left arm disability I have to do most of this with my right arm. They are about six to eight inches in diameter with pipework off those. You have to manoeuver them off the rack and onto the truck and after each compartment on the tank is loaded you have to take them off again and move them onto the next inlet on the tank. I have to do this eight times to load the truck each time. I did one load per day. I then drive to Botany and I unload there carrying out the same process as the loading but except in reverse. I then drive the empty truck back to Port Kembla and refuel the truck and park it and do all of my paperwork. Because of my left arm disability, I am doing most of this work with my right arm…”.[18]
[16] Application at page 4 at [34].
[17] Application at page 5 at [39].
[18] Application at pages 5-6 at [42].
It would seem from the applicant’s description of the applicant’s duties over the years that Dr Powel’s assumption that the applicant was only performing light duties work is incorrect. This assumption is repeated in Dr Powel’s second report of 9 August 2021 notwithstanding that by then Dr Powel had in his possession the statement of the applicant dated 4 May 2021.[19] Dr Powel in that second report in dismissing the involvement of the applicant’s work again relies upon the assumption that he remained on light duties.
[19] See Reply at page 23.
Because Dr Powel’s opinion is repeated in his three reports to the effect that the applicant was performing clerical work, Dr Powel’s opinion is founded upon incorrect assumptions and cannot be accepted.
Dr Bodel’s opinion is clear that the applicant has developed right neck and right shoulder conditions because he has favoured his left shoulder. Dr Bodel supports the view that having regard to the history the applicant has suffered a consequential condition with respect to his right shoulder.[20]
[20] Application at page 28.
The respondent makes the point that between September 2015 and March 2018 the applicant’s work was substantially restricted. The respondent also says that according to Dr Haber’s reports the applicant in November 2017 and January 2018 “was making excellent progress and an excellent recovery”.[21] The difficulty here is that these appear to be isolated occasions and do not account for the whole of the applicant’s exposure not only to work, but also to life generally. The respondent’s additional complaint that the applicant first complained of right shoulder pain to his general practitioner on 2 February 2021 appears to not deal with the fact that this is a consequential condition claim, so that it is unnecessary to identify a complaint of pain contemporaneous with the 4 December 2015 incident.
[21] Application at page 141.
The respondent points to the fact that the applicant underwent a driving licence medical assessment by Dr Arif which noted the applicant’s upper limbs were normal and made no reference to the applicant’s right shoulder.[22] This assessment was six days after the applicant complained about his right shoulder to his general practitioner so although there was evidently no complaint on 8 February 2021, there is nonetheless evidence that there was a complaint on 2 February 2021.
[22] Application at page 95.
The respondent offers no evidentiary challenge to the applicant’s statement in so far as his duties were concerned and his right shoulder and arm were used to protect the problems with his left shoulder. In particular, the respondent does not offer evidence to challenge the applicant’s description of his work over various periods and his absence of employment over various periods. The respondent has criticised Dr Bodel for not having addressed the main contributing factor test at all, but because the relevant test is a Kooragang[23] test and the applicant’s specific frank injury on 4 December 2015 is not challenged, in my view the evidence supports a finding that the applicant suffered a consequential condition in respect of his right shoulder, being consequential to his left shoulder injury.
[23] Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452.
Dr Bodel in his examination of the applicant on 8 September 2020[24] on examination found:[25]
“…he does have tenderness in the trapezium muscle on the base of the neck on the left side and there is guarding in that area. He has a reduced range of neck flexion, extension and rotation in all directions and this is most restricted on extension and on rotation on the right”.
[24] Application at page 26.
[25] Application at page 29.
Dr Bodel under diagnosis asserts that the applicant “has also developed consequential pain and stiffness in the neck…”.[26] There does not appear to be, however, any specific radiological evidence to support this claim. That being the case and because Dr Jansen identified on 23 August 2021 a free range of neck movement[27] and there being no mention of any complaint in the clinical records I am of the view that the applicant has not satisfied the onus that his neck condition was caused or materially contributed to by his left shoulder condition. As submitted by the respondent, the simple existence of referred pain is insufficient to establish any injury or consequential condition.
[26] Application at page 5.
[27] Application at page 45.

FINDINGS AND ORDERS

The applicant has suffered a consequential condition namely a right shoulder condition which was caused or materially contributed to by his left shoulder injury of 4 December 2015 in that the applicant through increased use of his right arm and shoulder both at work and generally has given rise to pathology in his right shoulder.
The surgery to the applicant’s right shoulder recommended by Dr Jansen is reasonably necessary medical treatment resulting from injury to the applicant’s left shoulder on 4 December 2015.
The respondent is directed to pay the costs of and incidental to the proposed right shoulder surgery.
Award in favour of the respondent in respect of the alleged consequential condition to the applicant’s cervical spine.

[2022] NSWPIC 624

9 November 2022